Inheritance Laws: The Advantages Of Making An Italian Will By Gabriele Giambrone

Posted by giambronelaw on January 20th, 2014

It is generally recommended that foreign citizens owning assets in Italy draft an Italian Will. This will prevent significant difficulties that heirs might experience when transferring the ownership of Italian properties or other movable assets such as funds held in postal bonds or bank accounts in Italy originally registered in the name of the testator.

A competent Italian Lawyer can help you to draft an Italian Will that complies with Italian law: such Will may have the form of an Italian Will (holographic, public or secret Will) or, depending on your own personal circumstances, it may be appropriate to prepare a foreign Will under your home jurisdiction as long as there are provisions in such Will which clearly state that (a) the foreign Will specifically deals with the Italian estate and (b) pursuant to a specific electiolegis(choice of law), you declare in such foreign Will that you wish to bequeath your Italian estate under the laws of your home country, as allowed by Law 218/1995. If you decide to prepare a foreign Will for your Italian estate, it is recommended that an Italian translation is made at the same time.

Conflicting national laws often apply when a person dies leaving assets in more than one country. Different countries recognise different concepts which influence succession to the deceased's assets. For example, England recognises the concept of domicile; France, Belgium and Denmark apply the concept of habitual residence whereas Italy, together with other countries such as Spain, Portugal and Germany apply the concept of nationality.

The interconnection between these concepts and their application to the succession of a cross border European estate may be very complex; it is always a good idea to obtain advice and support from an English speaking Italian solicitor, expert in the field of Italian inheritance and succession laws in Italy, as different rules may apply to non-Italian testators and to foreign beneficiaries of an Italian inheritance bequeathed by Italian Will.

In all cases, clients need to ensure that the lawyer they appoint has specialist knowledge of the succession rules of each country where they hold assets and how they interact with each other and – if they hold assets in Italy -it is advisable to consult an Italian law firm specialised in Italian succession and Italian probate matters.

Although, generally speaking, Italy recognizes the validity of international Wills, it is advisable for a non-Italian citizen to draft an Italian Will if you own properties or landin Italy. Dealing with documents drafted in a foreign language (and governed by different legal jurisdictions) in Italy can raise a number of difficulties andwe usually recommend to our foreign clients tocreate an Italian Will because, in our experience, the beneficiaries of an international Will (such as an English or American will) may have significant difficulty with the transfer of any Italian assets or the release of the bank accounts.

Under Italian law, all foreign wills must be authenticated by an Italian Public Notary before executing the Grant of Probate: the Italian notary may have substantial difficulty in resolving conflicts between foreign and Italian law as well as advising the beneficiaries or in preparing suitable documentation to transfer the Italian assets. As a matter of fact the Notary will not publish or legalize documents drafted in a foreign language unless duly translated into Italian by a certified and qualified translator and the cost of professional translation are often significant and far outweigh the costs of preparing an Italian Will.

When an international Will disposes of Italian assets contrary to the provisions of the civil code in Italy and in breach of the rules of forced heirship, it is not uncommon that any excluded beneficiary may decide to challenge its validity and this would invariably lead to lengthy and expensive litigation.

A well drafted Italian will significantly reduce any risk of future litigation between the beneficiaries or the heirs.

To be legally eligible to make an Italian will, a person must be:

· At least 18 years old

· The legal owner of the remaining assets disposed in the Will

· Of sound mind (capace di intendere e di volere)

It is also worth bearing in mind that an Italian Will can speed up the administrative procedures to be carried out with Italian banks. Bank accounts and bank deposits of the deceased will be frozen following the account holder’s death. The procedure to unfreeze them and obtain deposited funds can be long and difficult. Heirs could be called upon to pay certain expenses from their own pockets in the meantime, for example, payment of utility bills.

There are clear advantages to drafting an Italian Will. These can be summarized as follows:

· an Italian Will reduces the risk of conflict among heirs

· an Italian Will may mean a reduced tax bill for heirs

· an Italian Will helps Italian authorities to better understand the deceased’s wishes regarding disposal of his/her estate

Moreover a Will can be always modified by the testator up to the very last moment of life. It is essential to keep the Will in a safe place, for example in the hands of an independent Italian solicitor who can guarantee its safe keeping and can advise possible heirs about its existence once the testator has passed away.

Italian law dictates that a minimum statutory share (SuccessioneNecessaria) of the estate is bequeathed to immediate family members before the balance may be freely disposed of. It is therefore important the will-maker understands the law and how it affects the proposed distribution of his/her assets:this limits the effects of Italian legal succession and ensures that Italian property is disposed of according to the testator’s wishes and without violating Italian provisions regulating succession and circumventing the strict rules of forced heir ship under Italian law.

About The Author:

This article is written by Gabriele Giambrone, who is an award winning Italian lawyer and the Managing Partner of Giambrone Law. Giambrone Law is an award winning Italian law firm with highly experienced Italian lawyers to solve your litigation, Italian probate, banking and finance, family, corporate, real estate, personal injury, debt collection and much more legal issues. Their legal expertise includes all areas of Italian and international law.